SOFA Entertainment, Inc. v. Dodger Productions, Inc.
709 F.3d 1273
9th Cir.2013Background
- SOFA owns a licensed library including The Ed Sullivan Show; the dispute concerns a seven-second clip from the Jan. 2, 1966 Sullivan episode introducing the Four Seasons.
- Dodger used the clip in Jersey Boys, a biographical musical about the Four Seasons, ending the first act with Sullivan introducing the band.
- SOFA sued for copyright infringement; Dodger asserted a fair use defense under 17 U.S.C. § 107.
- The district court granted summary judgment for Dodger on fair use and awarded Dodger $155,000 in attorneys’ fees.
- SOFA appeals both the fair use ruling and the attorneys’ fee award.
- The court reviews Dodger’s fair use defense de novo and the fee award for abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dodger’s use was fair use as a matter of law | SOFA argues the clip is non-transformative and infringing | Dodger contends the clip is transformative and secondary use is not a substitute for the original | Dodger’s use is fair use as a matter of law |
| Whether the clip’s nature, amount, and market effect support fair use | SOFA claims the clip is central and commercially valuable; harms market | Dodger argues the clip is factual, brief, and does not substitute for the original | Factors 2–4 favor fair use; factors weighed in Dodger’s favor |
| Whether the district court properly awarded attorneys’ fees | SOFA challenges the fee award as unwarranted | Dodger argues fees were appropriate to deter frivolous litigation | Fee award upheld; recognizing fair use reinforces public policy |
Key Cases Cited
- Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (U.S. 1994) (transformative use standard; first fair use factor)
- Elvis Presley Enterprises, Inc. v. Passport Video, 349 F.3d 622 (9th Cir. 2003) (transformative use in historical reference points)
- Murray Hill Publ’ns, Inc. v. ABC Commc’ns, Inc., 264 F.3d 622 (6th Cir. 2001) (non-copyrightable line held not protectable; functional use considerations)
- Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (U.S. 1985) (distinctive expression concept; ideas vs. expression)
- Monge v. Maya Magazines, Inc., 688 F.3d 1164 (9th Cir. 2012) (metaphysical/analytic aspects of fair use; not decisive but guidance)
- Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006) (historical commentary; transformative use in posters; market effect considerations)
- Ty, Inc. v. Publish-ing Int’l Ltd., 292 F.3d 512 (7th Cir. 2002) (complementary/derivative uses; effect on market)
- Fogerty v. Fantasy, Inc., 510 U.S. 517 (U.S. 1994) (primary objective of fair use; deterrence of frivolous suits)